HKSAR v. Petrus Yau

CACC000001/1998

1998 CACC No. 1

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF APPEAL

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Coram: Power V.-P., Mortimer V.-P. and Keith J. in Court

Date of Hearing : 13 April 1999

Date of Delivery of Judgment : 29 April 1999

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J U D G M E N T

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Keith J. (giving the judgment of the Court):

Introduction

1. Until his arrest, the Applicant had spent his working life in the police force. He had attained the rank of senior inspector. However, he was arrested in 1996 and charged with various immigration offences which arose out of his connection with Jade Services, an agency which found work for Filipinos as domestic helpers. In May 1997, he was sentenced to terms of imprisonment in respect of one set of charges. In October 1997, he was tried in the District Court on another set of charges. He represented himself in that trial. This application for leave to appeal relates to that second trial.

2. In that second trial, the Applicant was convicted on three charges. The first charge was one of employing a person not lawfully employable. The second and third charges were ones of aiding and abetting the breach of a condition of stay. He had pleaded not guilty to these charges, as well as to two other charges on which he was acquitted. He was sentenced to 18 months' imprisonment and fined $50,000.00 on the first charge. He was sentenced to 4 months' imprisonment on the second charge, to be served consecutively to the sentence of imprisonment on the first charge. He was sentenced to 4 months' imprisonment and fined $5,000.00 on the third charge. That sentence was to be served concurrently with the sentence of imprisonment on the second charge, but consecutively to the sentence of imprisonment on the first charge. The net result was that he was sentenced to 22 months' imprisonment and fined $55,000.00 in all, though 12 months of the 22 months' imprisonment was to be served concurrently with sentences totalling 42 months' imprisonment which he was then serving as a result of his convictions at the trial earlier in 1997. He now applies for leave to appeal against his convictions and sentences in the second trial.

3. With the exception of the application for leave to appeal against the fine imposed on the first charge, in which the Applicant was represented by counsel, the Applicant represented himself on these applications. We wish to pay tribute to the Applicant's courtesy and moderation in the presentation of his arguments. Since there are arguable grounds of appeal against both conviction and sentence, we give the Applicant leave to appeal. We shall refer to him as the Appellant from now on.

4. In addition, in the course of the Appellant's trial, the judge concluded that the Appellant had been in contempt of court. He summarily fined the Appellant $1,000.00. The Appellant appeals against his conviction for contempt of court. He does not need leave to do so as his "trial" for the offence of contempt of court was not a trial "on indictment" within the meaning of section 82(1) of the Criminal Procedure Ordinance (Cap. 221): he can appeal as of right under section 50(1) of the High Court Ordinance (Cap. 4).

The principal prosecution witness

5. The person who the Appellant was said in the first charge to have employed was a Filipino, Arnel Gonzales. Gonzales was also the person whose breach of condition of stay the Appellant was said to have aided and abetted in the second and third charges. Indeed, he featured in the fourth and fifth charges as well. Not surprisingly, Gonzales was the chief prosecution witness at the Appellant's trial. The judge was not particularly impressed with Gonzales as a witness. In his Reasons for Verdict, the judge said:

"In my assessment of Arnel Gonzales's evidence, I find that his evidence is not reliable and without the support of other evidence, this court cannot rely solely on his evidence and be satisfied that the prosecution can prove the charges beyond reasonable doubt."

This did not mean that the judge was only prepared to rely on Gonzales's evidence if some part of his evidence was supported. It was because there was no support for the evidence which Gonzales gave relating to the fourth and fifth charges that the judge acquitted the Appellant on those charges. Accordingly, what the judge was saying was that if the Appellant was to be convicted on a particular charge, Gonzales's evidence relating to that charge had to be supported.

The first charge

6. It was not disputed that Gonzales came to Hong Kong on 27th October 1991 as a visitor. His evidence was that he was taken to the office of Jade Services by his mother-in-law. He met the Appellant there. The Appellant told him that he, the Appellant, would find someone to employ him. The Appellant added that in the meantime Gonzales could work for him. For the next month or so, Gonzales worked for the Appellant at his house in Yuen Long as a tiler. He was paid $100.00 a day. Gonzales also gave evidence about a day's work which he had done at a car repair workshop, which the Appellant had driven him to. The workshop was near the entrance to Fairview Park. Apart from that day's work at the workshop, the work which he did at the Appellant's house was the only work he did until he left Hong Kong for the Philippines. It was not disputed that he left Hong Kong on 21st November 1991, and that during his time in Hong Kong he had not been lawfully employable in Hong Kong. That evidence formed the basis of the first charge.

7. The judge took the view that Gonzales's evidence that he had been employed by the Appellant in October and November 1991 had been supported by the evidence of Choy King. Mr. Choy ran a car repair business from a workshop in Fairview Park. His evidence was that some time in the summer of 1991 the Appellant had brought two cars to his garage to be repaired. Mr. Choy was too busy to repair the cars, but he let the Appellant use his workshop to repair them himself. The Appellant had brought three Filipino workers to help him repair the cars. After a day or two, Mr. Choy commented to the Appellant that one of the Filipinos was particularly hard-working, and the Appellant suggested that Mr. Choy should employ him full-time. Mr. Choy did not say that Gonzales was one of the three.

8. However, in summarizing Mr. Choy's evidence, the judge said that Mr. Choy had "noticed Arnel Gonzales as the best among them". Although the judge did not say so in terms, the judge must have thought that the fact that Gonzales worked for the Appellant at Mr. Choy's garage for at least one day in 1991 supported Gonzales's evidence that he had been employed by the Appellant at his home in October and November 1991. The Appellant's defence to this charge was that he had never employed Gonzales at all, whether to work at his home or on his cars. He denied that he had ever taken Gonzales to Mr. Choy's garage.

9. Since the judge thought that he could only accept Gonzales's evidence on each charge if there was other evidence supporting that evidence, the crucial issue is whether it was open to the judge to conclude that Gonzales's evidence that he had been employed by the Appellant in October and November 1991 had been supported by the evidence of Mr. Choy. The difficulty is that Mr. Choy did not say that Gonzales was one of the three Filipinos brought to his workshop. If Gonzales was not one of them, Mr. Choy's evidence could not be regarded as supporting Gonzales's evidence as to whether he had been employed by the Appellant.

10. Mr. Darryl Saw S.C. for the Respondent sought to meet that difficulty in this way. He contended that when the judge said that Mr. Choy had "noticed Arnel Gonzales as the best among them", the judge was not saying that that had actually been Mr. Choy's evidence. What the judge was saying was that one of the three Filipinos had outshone the others, and in the light of other evidence given by Mr. Choy and his wife, Madam Lee Suet Mui, the judge inferred that that must have been Gonzales. The effect of the other evidence given by Mr. Choy and his wife was that Mr. Choy had been persuaded to employ a Filipino. Such an employee had to be nominally employed as a domestic helper, because that would be the only basis on which he would be permitted to remain in Hong Kong to work. An employment contract for the employment of a domestic helper by Madam Lee was drawn up a few days after the Appellant had come to Mr. Choy's workshop with the three Filipinos. Although Mr. Choy and his wife eventually decided not to go through with the plan to employ anyone (because Mr. Choy had been advised not to by one of his "Immigration friends"), that contract had named Gonzales as the employee.

11. Having read the words used by the judge with care, and having looked at the context in which he said them, we think it much more likely than not that the judge was saying that Mr. Choy's evidence was that Gonzales had been one of the three Filipinos. On the other hand, the only inference which can sensibly be drawn from the evidence of Gonzales and Mr. Choy is that Gonzales had indeed been one of the three Filipinos who the Appellant had brought to Mr. Choy's workshop. The workshop to which Gonzales had been taken was in Fairview Park (which was where Mr. Choy's workshop was), and the employment contract naming Gonzales was drawn up within a few days of the Appellant's visit with the three Filipinos to the workshop. It is therefore fanciful to suppose that Gonzales might not have been one of the three.

12. In these circumstances, the crucial question is: did Mr. Choy's evidence that the Appellant had brought three Filipinos (one of whom turned out to be Gonzales) to Mr. Choy's workshop to repair the Appellant's cars for a day or two amount to support for Gonzales's evidence that the Appellant had employed Gonzales for a month or so at his home? Here, it is important to note that Gonzales did not say in evidence that he had been employed by the Appellant at the workshop. His evidence was simply that he had done some welding there. He did not say for whom. Accordingly, Mr. Choy's evidence clearly supported Gonzales's evidence that he had worked at the workshop for a day, but that evidence of Gonzales was not itself support for his evidence that he worked for the Appellant for a month or so at the Appellant's house. The fact that the Appellant took Gonzales to the workshop could simply have been because Gonzales was one of a number of Filipinos whom the Appellant was trying to find work for, and working at the workshop for a day or two was a useful way for them to fill their time. Accordingly, it cannot be said that Mr. Choy's evidence supported that particular part of Gonzales's evidence which related to the first charge.

13. It follows that the premise on which the judge found Gonzales's evidence on the topic to be reliable is no longer sustainable. It was not suggested to us there was other evidence in the case which could have supported Gonzales's evidence on the topic if the judge had not found Mr. Choy's evidence to constitute the support which he required. It is accordingly not a case in which the proviso can be applied. It follows that the Appellant's appeal against his conviction on the first charge must be allowed, the conviction must be quashed, and the sentence of 18 months' imprisonment and the fine of $50,000.00 must be set aside.

The second and third charges

14. The judge dealt with the second and third charges together, and we propose to follow the same course. It was not disputed that Gonzales returned to Hong Kong on 1st June 1992. He was permitted to enter Hong Kong on a 12 months' visa on the strength of the employment contract which purported to show that he was to be employed by Madam Lee as a domestic helper. We have already summarized the evidence by which she came to agree to employ Gonzales as a domestic helper, and why she decided eventually not to employ him after all.

15. Gonzales's evidence was that, when he arrived in Hong Kong, the Appellant told him that his employment under the employment contract with Madam Lee had been terminated. The Appellant told Gonzales that Gonzales would be working for him renovating his house. He would be paid $100.00 a day as before. Gonzales's evidence was that he worked in the Appellant's house for about a month. That evidence formed the basis of the second charge. Although Gonzales had only been permitted to enter Hong Kong for the purpose of working for Madam Lee, the Appellant was said to have arranged for Gonzales to work for him for a short while.

16. Gonzales went on to say that, after he stopped working for the Appellant, he went to work for Ma Shu Ting who had a factory in Cheung Sha Wan making lunch-boxes. His salary was $3,000.00 a month. He only worked there for a few months before giving the job up. Gonzales's evidence was that it was the Appellant who had driven him to the factory to meet Mr. Ma, and that it was the Appellant who had actually introduced him to Mr. Ma there. That evidence formed the basis of the third charge. The Appellant was said to have arranged for Gonzales to work for Mr. Ma when Gonzales's permission to enter Hong Kong had been granted only to enable him to work for Madam Lee.

17. The judge took the view that Gonzales's evidence about the Appellant having introduced him to Mr. Ma had been supported by Mr. Ma. The judge found Mr. Ma to be an honest witness, whose evidence he described as reliable. Mr. Ma's evidence in chief was that he was thinking of employing a Filipino worker in his factory. Jade Services were recommended to him, and that was how he met the Appellant. He discussed with the Appellant the formalities relating to the employment of Filipino workers. He went on to say that it was Jade Services who introduced him to Gonzales. He was asked who within Jade Services had introduced him to Gonzales. He said that he thought it was the Appellant because it was the Appellant with whom he had been in contact. Mr. Ma's evidence was that when Gonzales left, it was the Appellant to whom he turned for advice. Part of his evidence in cross-examination did not lie easily with what he had said in chief, but it was undoubtedly open to the judge to conclude that Gonzales's evidence that he had been introduced to Mr. Ma by the Appellant was supported by the evidence of Mr. Ma.

18. But what was the evidence which the judge thought supported Gonzales's evidence that Gonzales had worked for the Appellant for a while after Gonzales's return to Hong Kong on 1st June 1992? That evidence was the admitted fact that it was the Appellant who had arranged for Gonzales to return to Hong Kong at the Appellant's own expense. On that topic, the judge said in his Reasons for Verdict:

"Why should the [Appellant] make the arrangements for Gonzales to come to Hong Kong in 1992? As Gonzales was arranged to come to Hong Kong by the [Appellant] at his own expense, how could Gonzales repay him the money if Gonzales had no work?"

However, we do not think that it was open to the judge to regard the fact that the Appellant had arranged and paid for Gonzales's fares to Hong Kong as support for Gonzales's evidence that he worked for the Appellant in the month or so after his arrival. It was equally possible that the Appellant had arranged and paid for Gonzales's return to Hong Kong because he hoped that work could be found for Gonzales in Hong Kong with a person or company who would pay commission to the Appellant or Jade Services. That is in fact what happened, because the evidence was that Mr. Ma paid Jade Services the sum of $7,000.00 by way of commission in connection with his recruitment of Gonzales.

19. Since the evidence on which the judge relied did not in fact support Gonzales's evidence that he had been employed by the Appellant in June 1992, the premise on which the judge found Gonzales's evidence on the topic to be reliable is again no longer sustainable. As with the first charge, it was not suggested to us there was other evidence in the case which could have supported Gonzales's evidence on the topic if the judge had not found the evidence on which he relied as constituting the support which he required. It is accordingly not a case in which the proviso can be applied. It follows the Appellant's appeal against his conviction on the second charge must be allowed, the conviction must be quashed, and the sentence of 4 months' imprisonment must be set aside.

20. However, Gonzales's evidence that the Appellant had introduced him to Mr. Ma was supported by other evidence. The judge's finding, therefore, that Gonzales's evidence on the topic was reliable was based on a secure foundation. Having considered the Appellant's grounds of appeal, we have not discerned any basis on which it would be proper to interfere with the judge's findings of fact. It follows that the appeal against the Appellant's conviction on the third charge must be dismissed.

The appeal against sentence

21. The appeal against sentence now relates to the third charge alone. As we have said, the Appellant was sentenced to 4 months' imprisonment on that charge and fined the sum of $5,000.00. Taken by itself, this sentence was on the lenient side. In R. v. Wong Mok Din [1994] 2 HKCLR 96 and Attorney-General v. Wong Chung Lee [1996] 2 HKCLR 159, it was said that 15 months' imprisonment after trial would be a proper sentence for an offence of employing a person not lawfully employable where one employee was involved, there were no circumstances of exploitation and the offender was aware that he was employing an illegal immigrant or had acted recklessly in so doing. We appreciate that Gonzales was lawfully in Hong Kong, and that what the Appellant had to be sentenced for was employing him when he could only have been employed by Madam Lee, but it cannot be said that the sentence of 4 months' imprisonment was in any way harsh or excessive.

22. As for the fine, we recognize that it is not normally appropriate to fine an offender who is serving a sentence of imprisonment at the time of sentence (as the Appellant was) or who is being sentenced to a term of imprisonment at the same time (as again the Appellant was). But a fine may be coupled with a sentence of imprisonment if that is necessary to recoup the profits of the offender's wrong-doing. Since the Appellant could be regarded by the judge as having the means to pay a modest fine despite the fact that he was in prison, and since Jade Services had been paid the sum of $7,000.00 by Mr. Ma for introducing Gonzales to him, it cannot be said that the imposition of a fine of $5,000.00 was either manifestly excessive or wrong in principle.

23. However, the sentence on the third charge cannot be looked at in isolation. It has to be looked at in the context of the sentences which the Appellant was already serving. In other words, if the Appellant had had to be sentenced on the third charge at the same time as he had been sentenced for the charges which resulted in the sentences totalling 42 months' imprisonment, what would have been the total sentence which the judge could justifiably have imposed? For that purpose, we have looked, as the judge did, at the charges for which the Appellant had been sentenced to terms amounting to 42 months' imprisonment and the reasons for the sentences imposed. In all the circumstances, we think that it would have been entirely appropriate to impose the fine of $5,000.00 and to order the sentence of 4 months' imprisonment on the third charge to be served consecutively to the 42 months' imprisonment which the Appellant was then serving.

24. There is one possible problem with that. When the judge imposed the sentences totalling 22 months' imprisonment on the Appellant and ordered that 12 months' imprisonment out of that 22 months' imprisonment be served concurrently with the 42 months' imprisonment which the Appellant was then serving, the judge did not identify which of the sentences he was imposing should be served concurrently with the 42 months' imprisonment. For example, he may have had in mind that the 4 months' imprisonment which he imposed on the third charge (albeit to be served concurrently with the 4 months' imprisonment imposed on the second charge) be served concurrently with the 42 months' imprisonment which the Appellant was then serving, that 8 months of the 18 months' imprisonment which he imposed on the first charge be served concurrently with the 42 months' imprisonment which the Appellant was then serving, and that it was the remaining 10 months of the 18 months' imprisonment which he imposed on the first charge which should be served consecutively to the 42 months' imprisonment which the Appellant was then serving. If that is what the judge had in mind, then an order by us that he serve the 4 months' imprisonment on the first charge consecutive to the 42 months' imprisonment which he is currently serving could be said to be an increase in his sentence on the third charge. However, we do not regard that as a problem at all. We are of necessity having to deal with a situation which by definition was not before the judge (because the convictions on the first and second charges have been quashed) and which was left unresolved by the judge, because he did not identify which particular part of the sentences he was imposing should be served consecutively to or concurrently with the sentences of 42 months' imprisonment which the Appellant was then serving.

25. The upshot of all this is that the appeal against sentence on the third charge is dismissed, and we order that the sentence of 4 months' imprisonment be served consecutively to the 42 months' imprisonment which the Appellant is currently serving.

The Appellant's contempt

26. One morning, about 2 weeks into the trial, Gonzales was giving evidence when the Appellant shouted out:

"You don't lie after swear to court."

The following exchange then occurred:

"Judge : Defendant, please stand up. I have told you if you disrupt my proceedings again, I will consider to commit you for contempt of court. Do you understand that?

Appellant : Understand.

Judge : If you do this in face of the court, I will pass the penalty upon you right away. Do you need time to calm down yourself first, let me know.

Appellant : Your Honour, please give me some time.

Judge : Adjourn 15 minutes."

Just under 30 minutes later, the court reconvened. The following exchange then occurred:

"Judge : Yau, please stand up. I'm now considering to commit you for contempt of court. Can you give me any reason why you should not be committed for the contempt of court?

Appellant : I beg your pardon, your Honour?

Judge : I'm now considering to commit you for contempt of court. I'm now giving you a chance to tell me any reason why I should not commit you for contempt of the court. I have given you warning. I have been tolerating you all the time. I have given you warning and you have disrupted my proceedings in the course of the trial. Any reason?

Appellant : Can't think of any reason, it is I ...

Judge : You'll have your chance to cross-examine your witness and the court will decide. Pursuant to section 20 of the District Court Ordinance, defendant you are fined $1,000.00."

After the Appellant had said that he understood what the judge had said, the exchange between them continued as follows:

"Judge : I have to tell you that the maximum penalty for this particular section is 2 years' imprisonment and I advise you not to do it again otherwise I will consider more severe penalty.

Appellant : I have no intention to contempt your Honour.

Judge : You have done it. I have warned you. You knew what you were doing.

Appellant : I did not know what I was doing but I just felt very aggrieved that he has been keeping on lying, lying and framing up stories against me. I had no intention of contempting you. I just speak out across to him that he had lied after he sworn to the almighty God. We have the same religion. I'm also a Catholic. I know the Second Commandment of the Ten Commandments, it's the second serious. He should not do that.

Judge : You know what you are doing. You know that what you are doing is a disruption to the proceedings. You know the procedure yourself.

Appellant : I did not disrupt him. He can continue giving evidence on his oath but I was, as you know, I was very, very aggrieved with all his lies causing me so much trouble, causing so many people so much trouble. And in fact yesterday I had already ...

Judge : Whether or not he is lying is up to me to decide, not for you to decide. Do you understand that? This is a court of law.

Appellant : I've just said one word. I just said one sentence.

Judge : But you have already disrupted the proceedings and you are fined $1,000.00.

Appellant : I had no intention to disrupt.

Judge : Thank you. You may sit down. I have already warned you."

27. The judge's remarks that he had been tolerating the Appellant all the time, and that he had told the Appellant that he would consider committing the Appellant for contempt of court if he disrupted the proceedings again, show that the judge thought that the Appellant had misconducted himself in the trial before then. That was a reference to the fact that on 6th October 1997, the first day of the trial, certain complaints had been made by a woman who was then the Appellant's co-defendant about his behaviour towards her in the course of the proceedings. Two days later, the Appellant renewed an application which he had made earlier for his sister to be permitted to sit next to him in the dock to help him. In refusing that application, the judge said:

"Mr. Yau, I have to tell you that I will not grant this leave to you because of your past behaviour. And you gave me this ground and I want to remind you what you had behaved, it amounted to contempt of the court. If you behave in that way again, I will consider to commit you for a contempt of the court. You have done it twice with violence. I am sorry, I can't trust you."

In the course of the exchange which then followed, the judge said that he had initially been considering whether to let the Appellant sit outside the dock to enable him to conduct his defence more easily, but that the Appellant's behaviour "has already proved to me that I cannot trust you because you're emotionally unstable". The judge added:

"I have already reminded you and warned you, if you do it again, I will consider to commit you for the contempt of the court because you're disrupting the process of the court proceedings."

However, this occurred on 8th October, and the contempt for which the judge summarily fined the Appellant occurred on 21st October. Mr. Saw did not refer us to any intervening incident which could be said to be relevant to the propriety of the course which the judge eventually took.

28. The power which the judge was exercising was, as he correctly said, the power conferred upon him by section 20 of the District Court Ordinance (Cap. 336). That provides, so far as is material:

"If any person

(a) wilfully insults ... a witness ... during his ... attendance in court; ... or

(b) wilfully interrupts the proceedings of the Court or commits contempt of the Court or otherwise misbehaves in court,

... the judge may if he thinks fit - ...

(ii) impose upon the offender a fine not exceeding $5,000 for every such offence."

This statutory power to deal summarily with contempt of court is a necessary and important weapon in the District Court's armoury to keep control of its own proceedings. But this power is one which should be exercised sparingly and with great caution:

"The power [to punish for contempt] is both salutary and dangerous: salutary because it gives those who administer justice the protection necessary to secure justice for the public, dangerous because it deprives a citizen of the protection of safeguards considered generally necessary to secure justice for him. This appeal gives an opportunity to make clear that it is a power to be used reluctantly but fearlessly when, and only when, it is necessary to prevent justice being obstructed or undermined ... That is not because judges, jurors, witnesses and officers of the court take themselves seriously: it is because justice, whose servants they are, must be taken seriously in a civilized society if the rule of law is to be maintained": per Stephenson L.J. in Balogh v. St. Albans Crown Court [1975] 1 QB 73 at p. 91A-B.

Thus, the power should be exercised only as a last resort, when other less drastic remedies are thought to be inappropriate, such as where the contempt is clearly proved and cannot wait to be punished: op. cit., p. 87F. Judges should therefore guard against the overuse of the power to try someone summarily for contempt: "its usefulness depends upon the wisdom and restraint with which it is exercised" (Lord Goddard C.J. in Parashuram Detaram Shamdasani v. King-Emperor [1945] AC 264 at p. 270).

29. Outbursts of the kind which the Appellant made happen from time to time. Legal proceedings can be extremely stressful for people involved in them. That is why judges are usually tolerant when people misbehave. They understand the pressures which people are under. A rebuke or a short adjournment followed by a reprimand, with an opportunity to the person to apologise, is invariably all that is required. It is therefore only in exceptional circumstances for the court to consider contempt proceedings, and even then it may be more suitable to let the contempt proceedings be handled by the proper prosecuting authorities and be determined by a different tribunal.

30. In all the circumstances of the case, we do not think that this was an appropriate case for the judge to exercise his powers under section 20. We recognise that the trial judge is in a much better position to assess what is required than this court many months after the event. Nor do we wish to belittle the offensive and insulting nature of the Appellant's outburst. Nor do we overlook the fact that Gonzales might have been intimidated by the Appellant's intervention. But we have not been referred to anything untoward happening in the trial since 8th October, and the Appellant's contrite attitude after he realised that he had been fined for contempt is an indication that he would have tendered his apologies to the court had he been reprimanded and an opportunity to apologise had been given to him. If, after such a rebuke, the Appellant had failed to apologise, it may then have been appropriate for the judge to exercise his powers under section 20. We do not think, though, that that time had arrived when the judge purported to exercise them.

31. However, even if the exercise by the judge of his powers under section 20 was appropriate, it was important that the judge did not proceed too hastily or in a manner which did not do justice to the Appellant. The need for time to let the dust settle and for the contemnor to have an opportunity to consider his own position was reinforced in the wise words of Lawton L.J. in R. v. Moran (1985) 81 Cr. App. R. 51 at p. 53:

"The following principles should be borne in mind. First, a decision to imprison the man for contempt of court should never be taken too quickly. The judge should give himself time for reflection as to what is the best course to take. Secondly, he should consider whether that time for reflection should not extend to a different day because overnight thoughts are sometimes better than thoughts on the spur of the moment. Thirdly, the judge should consider whether the seeming contemnor should have some advice. We do not accept the proposition which was tentatively put forward on this appeal that this contemnor had a right to legal advice. Sometimes situations arise in court when the judge has to act quickly and to pass such sentence as he thinks appropriate at once; so there cannot be any right to legal advice. Justice does not require a contemnor in the face of the court to have a right to legal advice. But if the circumstances are such that it is possible for the contemnor to have advice, he should be given an opportunity of having it. In practice what usually happens is that somebody gives the contemnor advice. He takes it, apologises to the court and that is the end of the matter. Giving a contemnor an opportunity to apologise is one of the most important aspects of this summary procedure, which in many ways is Draconian. If there is a member of the Bar in court who could give advice, a wise judge would ask that member of the Bar if he would be willing to do so. The member of the Bar is entitled to say no, but in practice never does."

32. In all the circumstances of the case, we think that the judge dealt with the matter too hastily. When the court rose, the Appellant might well have been under the impression, from the words which the judge had used, that the judge was merely warning him about his future conduct. So when the court reconvened, the Appellant may well have been surprised to learn that the judge was proceeding to try him summarily for contempt. Although the judge gave the Appellant the opportunity to advance any reason as to why he should not be committed for contempt, we doubt very much whether the Appellant was ready to address the judge on the topic. His response to the judge was an inarticulate one, and the fact that he was not ready to deal with the issue of contempt is borne out by what we have described as his contrition once he had appreciated that he had been fined for contempt.

33. For these reasons, we have reached the conclusion that, although the Appellant's outburst may well have amounted to conduct of the kind covered by section 20, the Appellant's conviction for contempt should be quashed and the fine of $1,000.00 set aside. This was not, in our view, a case in which the judge should have exercised the powers conferred on him by section 20, and even if it was, the judge acted with such haste as to raise doubts as to the fairness of the procedure which he adopted.

Representation:

Mr. John Marray, instructed by the Director of Legal Aid, for the Applicant.

Mr. Darryl Saw S.C. and Mr. Richard Ma, of the Department of Justice, for the Respondent.

Applicant in person (on the application for leave to appeal against his convictions and sentences on the first, second and third charges, with the exception of the fine of $50,000.00 imposed on the first charge).